Académique Documents
Professionnel Documents
Culture Documents
Kendall Cof f ey
John R. Hart
Thomas A. Hanson
Marion L. Jetton
Joel I. Klein
A. Douglas Melamed
Agostino James Monastra
C-l of 2
s. v. Monastra, No. 96-5417
C-2 of 2
STATEMENT REGARING ORA ARGUMNT
The United States does not believe oral argument is
necessary in this case. The decisions of the courts of appeals
are uniform in rej ecting the legal claims raised by appellant,
and appellant' s factual contentions can readily be disposed of by
simple reference to the text of the plea agreement at issue.
CERTIFICATE OF TYPE SIZE AN STYLE
This brief is printed in 12 - point Courier, 10
cpi.
TABLE OF CON'ENS
Statement of Facts.
Standard of review . 9
SUMY OF ARGUMNT .
ARGUMNT
iii
TABLE OF AUTORITIES
CAES
Koon v. United States , 116 S. Ct. 2035 (1996)
. 19
United States v. Allen , 87 F. 3d 1224 (11th Cir. 1996) . 26
United States v. Barnes , 83 F. 3d 934 (7th Cir.
cert. denied , 117 S. Ct. 156 (1996) . 2-
United States v. Caporale , 806 F. 2d 1487
United States v. Veri , 108 F. 3d 1311 (10th Cir. 1997) . 16, 19,
S'lA'1ES AN RULES
15 U. S . C .
18 U. 3231
18 U. 3553 (b) li . 8, 11, 19 ,
18 U. 3742 (a) li .
28 U. 1291
Fed. R. Crim. P. 11 (e) (1) (A) Go . . 12
Fed. R. Crim. P. 11 (e) (1) (B) passim
Fed. R. Crim. P. 11 (e) (1) (C) pass im
Fed. Crim. 11 (e) (2) . 6 , 12
Fed. Crim. 11 (e) (3) 11, 13, 20, 21,
Fed. Crim. 11 (e) (4) 10, 13,
U. S . S . G . Ch. 1 , Pt. A 22, 23
U. S . S . G. Ch. 5, Pt. A
2Rl. 1 24,
3Bl. 0. . 5,
3El.
5Cl. 1
u. s. S. G. ~ 5Kl.
U. S. S. G. ~ 5K2. 0
U. S. S. G. ~ 6Bl. 23,
OTHER MATERIALS
121 Congo Rec. 19538-39 (1975) . 22
121 Cong. Rec. 23322 (1975) . 22
Fed. R. Crim. P. 11 (1979 Advisory Committee Notes) 13,
H . R . Rep. 94 - 247 ( 19 75 ) . 22
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-5417
STATEMENT OF JUISDICTION
This case is an appeal of a sentence imposed in a criminal
antitrust case. This Court has jurisdiction under 28 U.
~ 1291 and 18 U. C. ~ 3742 (a) . The district court had
jurisdiction under 18 U. C. ~ 3231 and 15 U. C. ~ 1. Final
judgment was entered on November 20, 1996. Rl- 44. Appellant
filed a notice of appeal on November 25, 1996. Rl - 45 .
STATEMENT OF ISSUES
Whether the district court correctly determined that the
plea agreement between appellant and the United States
which
clearly states that it was reached pursuant to Fed. R. Crim.
11 (e) (1) (C), was in fact concluded under that paragraph.
probation, six months ' home ' confinement, and 500 hours of
community service. Alliance Metals was sentenced to 5 years
probation and a $1. 15 million fine. PSI 3. Maurice Peterson,
who is deceased, was not charged.
. "
stated that " (t) he United States and Mr. Monastra agree that the
appropriate disposition of this case is that Mr. Monastra be
U. S . S . G . Ch . 5, Pt. A.
The government lawyer, however, broke in and stated that " (t) his
plea agreement is drafted pursuant to Rule 11 (e) lC. " R3 - 6 to -
The court then corrected itself, stating " you agree that if I
disagreed with your recommendation, he could withdraw his plea;
cooperation; and Monastra agreed that the plea agreement does not
have a plea agreement under 11 (e) (1) (C)" and stated that he is
not attacking the plea agreement" but feel (s) honor bound by
R4-5, 12, 59- 60, 62. In particular, Monastra asked the court not
imprisonment. R4 - 55.
from the Rule 11 (e) (1) (C) agreement. "I think because of the
nature of the plea agreement the court could either reject the
two years ' supervised release. RI- 44; R4-66 to 4- 68. The court
found that Monastra was " not capable of paying the minimum range
C. Standard of review.
terms of a plea agreement (D. Br. 18- 25) under a clearly erroneous
11 (e) (1) (C), Monastra argues that the agreement was in fact
reached under Rule 11 (e) (1) (B), and accordingly was not binding
on the sentencing court. A simple examination of the plea
the parties " understand that the Court retains the complete
not (B) agreements), Mr. Monastra will have the right to withdraw
to make recommendations within the level-12 range does ' not render
the agreement a Tye- (C) agreements can provide
(B) agreement.
for either a specific sentence or encompass a range. I f the
this Court should also rej ect it. The terms of Rule 11 (e) (3)
the plea agreement. But the court may not depart from the
under Rule 11 (e) (1) (C), and he is not permitted now unilaterally
agreement in this case was a Rule 11 (e) (1) (C) agreement, Monastra
now asserts (D. Br. 18- 25) that the plea agreement was reached
under Rule 11 (e) (1) (B) and, accordingly, was not binding on the
district court. Even assuming that Monastra s argument is not
With a (B) agreement, the court must " advise the defendant
that if the court does not accept the recommendation or request
advise the defendant " that the court is not bound by the plea
agreement" and afford the defendant an opportunity to then
wi thdraw the plea. Fed. R . Crim. P . 11 (e) (4) If the court
accepts the (A) or (C) agreement, the court " shall inform the
defendant that it will embody in the judgment and sentence the
disposition provided for in the plea agreement. Rul e 11 (e) (3) .
Thus, the " critical" characteristic of an (A) or (C)
agreement is that the defendant receive the contemplated charge
dismissal or agreed- to sentence. Consequently, there must
ultimately be an acceptance or rej ection by the court of a type
(A) or (C) agreement so that it may be determined whether the
unclear" (D. Br. 24) simply ignores what the judge plainly said
. "
stating that the parties " agree that the appropriate disposition
of this case" is that Monastra be sentenced at offense level
is " pursuant to" Rule 11 (e) (1) (C) Rl - 21 - 1. And at the guilty
plea hearing, Monastra did not obj ect when government counsel
correctly told the district court that the agreement was a (C)
agreement. R3 - 6 to 3 -7. Moreover, in his presentencing letter
to the Probation Officer, Monastra stated that he and his company
had reached plea agreements with the Government under Fed. R.
Crim. P. 11 (e) (1) (C), pursuant to which the parties have agreed
upon particular sentences as the appropriate disposition of the
case. " Letter from Charles C. Murphy, Jr., Esq. to Virginia
Cataldo, U. S. Probation Officer 1 (June 10, 1996). Finally, at
sentencing, Monastra s attorney agreed that the agreement was
reached under Rule 11 (e) (1) (C), stating " (w) e do have a plea
agreement under 11 (e) (1) C) . R4 - 4, He also confirmed that
"it (was) made clear in the plea hearing that this was an
11 (e) (1) (C) (. R4 - 2 6 .
the agreement was really a non- binding (B) agreement. But the
law is clear that a (C) agreement can involve an agreement either
to a specific sentence, or, as in this case, to a sentencing
range. See. e. United States v. Veri , 108 F. 3d 1311, 1313-
954- 955 (9th Cir. 1994) (plea agreement with range of 5 to 7 years
States stated that the plea agreement was concluded under Rule
11 (e) (1) (C), and stated that it was filing the memorandum to meet
Procedure 11 (e) (1) (C) PSI 3. See also Letter from Justin M.
Monastra also argues (D. Br. 22- 23) that the use of the term
explains that the court must either accept or rej ect the
Fed. R. Crim. P. 11 (e) (1) (B) . In this case, the plea agreement
expressly stated that the level-12 range was binding on the court
and that, if the court was not satisfied with sentencing at level
twelve, the court would have to reject the agreement and permit
Monastra to withdraw his guilty plea. The fact that the
agreement also provided what the parties could argue to the court
within this range including the government' s promise to
for a split sentence - - does not detract from the fact that the
parties, in the language of Rule 11 (e) (1) (C), agreed that "
11 (e) (1) (C), the court retained discretion to depart from the
11 (e) (3) (emphasis added): "If the court accepts the plea
provided for in the ((C)) plea agreement" - - and not some other
sentence. " Thus "Rule 11 (e) (3) prohibits a district court from
United States v. Semler , 883 F. 2d 832, 833 (9th Cir. 1989). See
also Veri , 108 F. 3d at 1314-1315 (rejecting argument that court
to " retain the plea and discard the agreed-upon sentence"), cert.
denied , 117 S. Ct. 156 (i996); United States v. Kaye , 65 F.
240, 243 n. (2d Cir. 1995) (in a (C) agreement, defendant waives
right to request a downward departure); Mukai , 26 F. 3d at 955 - 956
247, 251-252 (D. Md. 1995) (court may not accept (C) agreement and
then depart downward). See also Dean , 80 F. 3d at 1541 (" (w)ith a
at 956.
court does not agree with the departure agreed to by the parties,
it may disapprove the (C) agreement, 14 but it is not authorized
independently to depart if the parties have not agreed to a
particular departure.
court does not consider the (C) agreement fair, it simply rejects
the entire plea agreement.
stating that he did not want the court to rej ect the plea (which
accorded him negotiated benefits), and so he cannot criticize the
court for not pursuing this avenue.
for the parties. Accordingly, the district court correctly
JOEL I. KLEIN
Assistant Attorney General
A. DOUGLA MELAD
Deputy Assistant Attorney
General
OF COUNSEL:
APRIL 1997.
CERTIFICATE OF SERVICE
Thomas A. Hanson
John R. Hart
Carlton Fields, P.
Esperante
222 Lakeview Avenue, Suite 1400
Post Office Box 150
West Palm Beach, FL 33402
La-- J / ii/?
Marion L. Jet